Loading...
HomeMy WebLinkAbout1987-2246.Narain.89-08-21ONTAR EMPLOYts mu CO”RONNE CwJWNsuPLO”EES DEL’OONMRKJ GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD Between: OPSEU (M. Narain) - and - Grievor The Crown in Right of Ontario (Ministry of Natural Resources) Employer Before: E.K. Slone Vice-Chairperson F. Taylor Member D. Clark Member For the Grievor: R. Ross Wells Counsel Gowling, Strathy L Henderson Barristers & Solicitors For the Employer: R.C. Filion Counsel Winkler, Filion & Wakely Barristers & Solicitors Hearinq: June 22. 1989 RULING The following was delivered orally in the presence of the parties on June 22, 1989, and as promised is being released (with minor modifications) as a written award of the Board. The matter came on for a hearing before this panel of the Board on June 22, 1989. Ours was not the first panel to embark on a hearing of this case. In April 1988, another panel of the Board began a hearing, dealt with some preliminary matters, and adjourned the matter to itself in January 1989. At that time the grievor required an adjournment for personal reasons, and the Board decided that it was not seized of the case after all. Accordingly, it was merely adjourned to the next available date before whatever available panel: namely now before us. This panel decided two preliminary matters. Counsel for the employer has asked us to declare that we have no jurisdiction, because the remedy sought by the grievor is to be placed in a position that, while it was at one time within the bargaining unit, is now a management position. After some argument, we ruled that the matter is arbitrable and that the question of remedy is a matter to be considered at the end of the case, should the grievor succeed in establishing a breach of his rights under the Collective Agreement. The second matter concerned the proper order of proceeding. The grievance is framed as a constructive dismissal, but in substance the grievor is complaining that he was denied a transfer to a new job in a newly created ministry when his old job was subject to a reorganization. The grievor has not been thrown out of work. Indeed, he remains gainfully employed within his old ministry. It is common knowledge that a constructive dismissal usually refers to a situation where the employer has coerced or manouevered an employee into resigning. In such a situation, the employer's actions are tantamount to a dismissal without cause. While it is the usual practice in dismissal cases to call upon the employer to present its evidence first - the onus of proof being on the employer - we are of the view that the grievor in this case bears a legal onus to establish that some violation of the Collective Agreement has taken place. If it truly amounts to a constructive dismissal, the onus of proof could be cast back on the employer to justify its actions. Thus, the grievor must present his case first. Having adjourned briefly after making these two rulings, we were informed that Mr. Bern Feenstra, the individual who -2- received the job to which the grievor claims entitlement, was requesting an adjournment to be afforded the opportunity to retain and instruct counsel. Both the union and the employer gave notice to Mr. Feenstra of the various hearing dates. Those notices were phrased in generalities, to the effect that Mr. Feenstra might be affected by the outcome of these proceedings. Technically, these notices were adequate to satisfy the obligations on both parties to notify third parties such as the incumbent in a position which is subject to a grievance. However, it was not until a few days ago that Mr. Feenstra understood that one of the remedies being sought by the grievor was to be awarded HIS job. Probably Mr. Feenstra ought to have been more diligent and curious when he received the notices, to ascertain precisely how he might be affected. But in the unusual circumstances of this case, it was not until a week ago, in a letter between counsel, that the grievor came right out and said (at least not before in writing), that he was seeking Mr. Feenstra's job. The grievor in his grievance form only asks to be ~reinstated to his former position, one which neither Mr. Feenstre nor presumably anyone else occupies. Thus we cannot seriously fault Mr. Feenstra for not seeking counsel prior to today. Accordingly, we are in the unfortunate position of having to adjourn this matter, one more time. We do so because Mr. Feenstra's rights are squarely in issue, and while technically he had proper notice, we would be very unforgiving indeed if we denied him the minor indulgence of this Board, namely an adjournment to retain and instruct counsel. We are more willing to grant this indulgence, knowing that the delay will not cause any great prejudice. The grievor remains gainfully employed, unlike many grievers who bring forward a "dismissal" case. Since this panel heard no evidence, although it was necessary to review certain documents in order to make the rulings which we have made, we do not consider ourselves seized of this case. It will simply be adjourned to a date to be set by the Registrar, to be h~eard by whatever panel is available. While that panel should not be fettered in its jurisdiction to decide upon its own procedure, it may find it convenient or appropriate to adopt the rulings that we have -3- made and which are set out in this award. Accordingly, the parties should bring these rulings to the attention of that panel. Dated at Toronto this 2lday of August, 1989. Vice-Chairperson ,A / , ! ,I: A#--,;,+/ Don Clark, Member